In Judgment no. 1672/2017, the Milan Court of Appeal has ruled again on the severance indemnity pay set out in Article 1751, Italian Civil Code. In particular, the Court has clarified that the expiration of an agency contract which is followed, without interruption, by a second agency contract with the same principal does not give rise to the right of the agent to receive the severance indemnity set out in Article 1751, Italian Civil Code, or the indemnities set out in collective bargaining agreements. Moreover, the Court further ruled, if the new contract no longer provides for non-competition obligations, the agent shall receive no non-competition indemnity. This judgment stresses in particular the undeniable element of the non-termination of the contract in the event of stipulation of a new contract without interruption, which is why the severance indemnity pay cannot be allowed. In the same way, unless otherwise agreed by the parties, if the new contract sets out nothing on the prohibition to engage in competitive activities once the contract is terminated, the agent shall be entitled to no indemnity, even though he was entitled thereto under the previous contract.

In Judgment no. 2600 of 2 February 2018, the Court of Cassation reiterated that if the signatory parties to a second-level collective agreement have not expressly provided for the need to serve written notices for termination purposes, the employer’s verbal withdrawal can be considered valid. The case at hand concerned a collective agreement – which set out certain provisions regarding the award of cash bonuses – on an annual basis, with tacit renewal, unless in case of cancellation served by 31 January. A few workers claimed that they had not received payment of a portion of the bonus, and applied for an order for payment of the amounts envisaged in the collective agreement. On the other hand, the employer argued that said agreement was inapplicable, as the company had verbally cancelled it, in the course of a meeting with the trade unions held before 31 January. The Court of Appeal had upheld the claim of the workers, maintaining that, for a withdrawal to be effective, this must be made in a written form. The Supreme Court had a different view, believing that the withdrawal, even if verbal, was effective, in observance of the principle of the freedom of form, since in the case at hand the collective agreement did not mandatorily require a written form in order for the withdrawal to be effective.

In Judgment no. 1712/2017, the Milan Court of Appeal has dealt with the issue of the omission by the employer of the annual objectives linked to the payment of a bonus. In this case, in the Court’s opinion, the employee claiming payment of the bonus is encumbered with the burden of “… producing and proving his achievement of the objectives that, according to the principles of fairness and good faith in performing a contract, should have been reasonably assigned with a view of continuity with previously set objectives and in relation to the company potential and contingent market conditions”. This is so because the omission in question constitutes contract breach, since the employer is obliged to assign the annual objectives, and does not fall within the scope of application of Article 1359, Italian Civil Code (relied on in the case at hand by the worker) according to which “the condition (editor’s note: achievement of the objectives linked to payment of the bonus) should be considered fulfilled if this was missing for reasons attributable to the party that had no interest in the fulfilment thereof.” This provision – according to the Court – shall apply only in case of a future and uncertain event, on the occurrence of which the effectiveness of an agreement depends. This is so when an employer that has assigned the objectives has engaged in a conduct that prevents workers from achieving them; nevertheless, also in this case, the worker should prove not only the interest of the employer against fulfilment of the condition but also that the objective would have been achieved had the employer not thwarted it.

In regard to collective dismissals occurred in the “January 2018” pay period, the employers are subject to payment, by next March 16th, of the “first” dismissal bonus increase. Given that the NASPI (Social Insurance for Employment) monthly limit in 2018 is equal to Euro 1,208.15 for each twelve months of employment seniority, the contribution to be paid is equal to Euro 990.68. For workers that have accrued a seniority equal to or higher than 36 months, the contribution is equal to Euro 2,972.04. For workers that have not accrued a seniority of 12, 24 or 36 months, the contribution shall be calculated in proportion to the number of months of actual employment. In case of collective dismissals, for which a declaration of redundancy has not been negotiated with the trade unions, the contribution shall be multiplied by three.

In Circular Letter no. 5 of 19 February 2018, the National Labour Inspectorate provided further operating provisions on the “new” Article 4, Workers’ Statute. In particular, the Inspectorate specified that, due to actual reasons of control, a video surveillance system may also monitor the workers without any limitations as to the camera angle, the blacking out of the face of the operator or the specific indication of the position of the cameras and their exact number. This is so because oftentimes the conditions of places and the positions of merchandise or production plants is subject to continuous changes in the course of time. Only for systems that start operating when workers are present, observance of the principles of proportionality, fairness and not excess set out in the Privacy Code should also be verified. According to the Labour Inspectorate, the use of video surveillance systems based on IP technology can also be allowed; remote access to these in real time must be authorized only in exceptional cases, while access to recorded images shall be traced in order to allow storage of “log-ins” for a period of at least six months. Regarding the collection and processing of biometric data, the Labour Inspectorate has accepted the indications of the Italian Data Protection Authority, setting out that these devices are legitimate only if they are considered indispensable tools to perform the work as they aim at limiting access to “sensitive” areas or allowing use of hazardous machinery only by qualified personnel. The new provisions of the Labour Inspectorate, even if they remove many doubts, basically further prove that the application of the matter at hand is uncertain and that it is necessary to make personalized inquiries into each specific case.